Considered and decided by Toussaint, Chief Judge, Peterson, Judge and
Foley, Judge.[*]

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

Appellant Devaries Dillard challenges his conviction and prison
sentence for aiding and abetting first-degree assault. Dillard argues that (1)
the weight of the evidence and interests of justice require a new trial; (2)
the trial court abused its discretion in ordering a 50 month upward durational
departure; (3) there was a misidentification; and (4) he received ineffective
assistance of trial counsel. Because there is sufficient evidence in the
record to support the conviction and the upward departure based on particular
cruelty, and insufficient evidence of misidentification or ineffective
assistance of counsel, we affirm.

D E C I S I O N

I.

Dillard argues that the weight of the evidence and the
interests of justice require a new trial because the state's witnesses were not
credible and their contradictory testimony preponderates against the verdict.
In reviewing sufficiency of the evidence claims, this court is limited to
ascertaining whether, given the facts in the record and the resulting
legitimate inferences, the jury could reasonably conclude that the defendant
was guilty of the offense charged. State v. Johnson, 568 N.W.2d
426, 435 (Minn. 1997). We cannot retry the facts, but must view the evidence
most favorable to the state and assume that the jury believed the state's
witnesses and disbelieved any contradictory evidence. Id.
Identification need not be positive and certain, rather it can be
sufficient if a witness testifies that in their belief, opinion and judgment,
the defendant is the one who the witness saw commit the crime. Id.
The jury, not this court, makes credibility determinations.
State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990).

Whoever assaults and inflicts great bodily harm upon another is guilty of
assault in the first-degree. Minn. Stat. § 609.221, subd. 1 (Supp. 1997).
Great bodily harm is defined as:

bodily injury which creates a high probability of death, or which causes
serious permanent disfigurement, or which causes a permanent or protracted loss
or impairment of the function of any bodily member or organ or other serious
bodily harm.

Minn. Stat. § 609.02, subd. 8 (1996). One is liable for a crime committed
by another if that person intentionally aids, counsels, or conspires with or
otherwise procures the other to commit the crime. Minn. Stat. § 609.05,
subd. 1 (1996).

The record contains eyewitness testimony that Dillard aided in assaulting the
victim, Ryan Newby. Eyewitness testimony of one credible witness can support a
guilty verdict. Johnson 568 N.W.2d at 435. Stephanie Thayer and
Steven Ybarra both testified that Dillard stomped on Newby's head while he lay
on the ground unconscious. Ybarra testified that he was positive that he saw
Dillard kick Newby. Ybarra also identified Dillard at a show-up
identification minutes after he was arrested following the assault. Another
eyewitness, Franz Gardner, testified that Dillard held Newby by the waist while
his accomplice repeatedly stomped Newby in the face. Gardner also testified
that Dillard hit Newby while on the ground. In his defense, Dillard testified
that he grabbed Newby around the waist and swung at Newby a couple of times.
The testimony of Thayer, Gardner and Dillard corroborates Ybarra's
identification. Therefore, there is sufficient evidence in the record to lead
the jury to reasonably conclude that Dillard was guilty of aiding and abetting
the assault of Newbury.

II.

Dillard also argues that the trial court abused its discretion
in ordering a 50 month upward durational departure without considering
mitigating factors. The sentencing court may impose a more appropriate and
equitable sentence when substantial and compelling factors are present.
State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987),
review denied (Minn. Sept. 29, 1987). The trial court is accorded
broad discretion, which will not be interfered with absent a strong feeling
that the sentence exceeds that proportional to the severity of the offense.
Id. Although infliction of injury may be an element of the
crime, that injury can be considered as an aggravating factor when it is
serious and permanent. State v. Van Gorden, 326 N.W.2d 633, 634
(Minn. 1982).

The trial court partially granted the state's motion for an upward departure
because of the aggravating factor of particular cruelty. In support of its
departure, the trial court relied on Felix, 410 N.W.2d 398. In
Felix, this court affirmed a double durational departure for a
first-degree assault conviction where the victim was robbed and brutally
beaten. Id. at 401. The victim was found near a dumpster,
partially clothed, with her pants down to her ankles and her shirt up around
her head. Id. at 399. As a result of the brutal
attack, her eyes were swollen shut, she had a deep and long cut on her face,
andher lip was completely pulled apart, exposing her teeth and
upper jaw. Id.

Dillard also argues that, according to State v.
Wall, 343 N.W.2d 22 (Minn. 1984), his lack of intent to assault Newby,
his intent to break up the fight, and his cessation when Newby was unconscious
are mitigating factors that the trial court was required to consider.

In Wall, the Minnesota Supreme Court modified the defendant's
sentence because the aggravating circumstances were negated by his lack of
substantial capacity for judgment. Id. at 25. Here, there was
ample evidence in the record to show that Dillard had substantial capacity for
judgment. Thus, Dillard's reliance on Wall is misplaced. The
mitigating factors asserted by Dillard do not negate the aggravating factor of
particular cruelty.

Dillard further argues that according to State v. Blegen, 387
N.W.2d 459 (Minn. App. 1986), review denied (Minn. July 31,
1986), the element of great bodily harm cannot be used as an aggravating factor
for sentencing. In Blegen, the victim was brutally sexually
assaulted. The defendant choked and beat her, banged her head into a tree, and
bit her on the face, cheeks, hands, arms and legs. Id. at 461.
Defendant also repeatedly pummeled the victim in the face. Although we cited
State v. Jeno, 352 N.W.2d 82, 84 (Minn. 1984), for the
proposition that generally "something more than the elements of the offense
must exist to justify a departure," we affirmed the sentence because of the
defendant's treatment of the victim with particular cruelty.
Blegen, 387 N.W.2d at 464.

Similar to Blegen, Newby suffered injuries greater than those
contemplated by the great bodily harm element of first-degree assault. Newby
suffered various injuries that each alone would satisfy the definition of great
bodily harm. Newby suffered a coma, serious permanent disfigurement, and a
severe brain injury, and was also subjected to a high probability of death as a
result of this assault. Therefore, the trial court properly considered Newby's
injuries and did not abuse its discretion by imposing an upward departure based
on the aggravating factor of particular cruelty.

III.

In his pro se brief, Dillard also argues that he received
ineffective assistance of counsel at trial. Dillard argues that his counsel
failed to (1) make timely objections; (2) investigate the matter properly; (3)
obtain his confederate's clothing; (4) impeach witnesses; (5) discuss the
matter with him in a timely manner; and (6) work with him to prepare a trial
strategy for his defense.

In alleging ineffective assistance of counsel, the appellant must prove:

First * * * that counsel's performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning as the
"counsel" guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the defense.
This requires showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.

Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991)(quoting
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984)). A strong presumption exists that counsel's performance falls
within a wide range of reasonable professional assistance. Hale v.
State, 566 N.W.2d 923, 927 (Minn. 1997). Counsel need not obtain a
favorable result, but provide a guiding hand, as envisioned by the Sixth
Amendment. Id. This court may dispose of an ineffective
assistance of counsel claim when the appellant fails to prove there was a
reasonable probability that the outcome would have been different. Id.
Here, although Dillard alleges several instances of ineffective
assistance, he has failed to prove that these actions would have produced a
different outcome at trial. Furthermore, there is no evidence in the record to
suggest that these events were so serious that Dillard's counsel was not
functioning as "counsel" guaranteed by the Sixth Amendment. Consequently,
Dillard's claim of ineffective assistance is unfounded.